CHAPTER XX
IMPEACHMENT
Early in 1867, Congress passed an act, originating in the Senate, to prevent the President from removing, without the consent of the Senate, any office-holders whose appointment required confirmation by that body. In its inception it was not intended to include members of the Cabinet, but merely to protect postmasters, collectors, and other appointees of that grade, whom the President, in his stump speech at St. Louis, had declared his intention to "kick out." Accordingly a clause was inserted excluding Cabinet officers from the operation of the measure.
When the bill came before the House, a motion was made to strike out this exception, and it was at first negatived by a majority of four. Subsequently the motion was renewed and carried, but the Senate refused to concur. The differences between the two houses were referred to a committee of conference of which Sherman was a member. He had been extremely resolute heretofore in opposing the attempt to include members of the Cabinet, because he held that no gentleman would be willing to remain a member after receiving an intimation from his chief that his services were no longer desired. To this Senator Hendricks replied that it was not a question of getting rid of a gentleman, but of a man of different stamp, who might be in the Cabinet and desire to stay in. "The very person who ought to be turned out," he said, "is the very person who will stay in." The Conference Committee reported the following proviso, which was adopted by both houses:
That the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Postmaster-General, and the Attorney-General shall hold their offices respectively for and during the term of the President by whom they may have been appointed and for one month thereafter, subject to removal by and with the advice and consent of the Senate.
Senator Doolittle, who opposed the bill in toto, pointed out that it did not accomplish what it aimed at: that is, it did not prevent the President from removing the Secretary of War. He showed that Stanton had never been appointed by Johnson at all. He was merely holding office by sufferance. The term of the President by whom he was appointed had expired and the "one month thereafter" had also expired; therefore, the proviso reported by the Conference Committee was futile to protect him.
Sherman replied that the proviso was not intended to apply to a particular case or to the present President, and that Doolittle's interpretation of the phrase as not protecting Stanton in office was the true interpretation. He added that if he supposed that Stanton, or any other Cabinet officer, was so wanting in manhood and honor as to hold his office after receiving an intimation that his services were no longer desired, he (Sherman) would consent to his removal at any time. This declaration committed Sherman in advance to a definite opinion as to the President's right to remove Stanton whenever he pleased.
The bill passed with the clause above quoted, all the Republican Senators present voting for it except Van Winkle and Willey, of West Virginia. Trumbull was recorded in the affirmative.
At the first Cabinet meeting of February 26, the bill was considered, and all the members thought that it ought to be vetoed. "Stanton was very emphatic," says Welles, "and seemed glad of an opportunity to be in accord with his colleagues." (He had previously given his sanction to the Stevens Reconstruction Bill in opposition to his colleagues.) The President said he would be glad if Stanton would prepare a veto or make suggestions for one. Stanton pleaded want of time. The President then turned to Seward, who said that he would undertake it if Stanton would help him. This was agreed to, and the veto (based on the ground of unconstitutionality) was prepared and submitted by them at the Cabinet meeting of March 1. Stanton must have been aware of the colloquy between Sherman and Doolittle in which his name was mentioned, and he probably agreed with them in the opinion that he was not protected by the Tenure-of-Office Act. If he had thought differently he would hardly have favored the veto, or joined with Seward in writing it. The veto message was sent in on March 2, 1867, and the bill was passed by two thirds of both houses the same day.
Few persons at the present time believe that there was any substantial ground for the impeachment of Andrew Johnson. The unsparing condemnation of history has been visited upon the whole proceeding, and the commonly received opinion now is that if the Senate had voted him guilty as charged in the articles of impeachment a precedent would have been made whereby the Republic would have been exposed to grave dangers. Trumbull was one of the so-called "Seven Traitors" who prevented that catastrophe.
The first session of the Fortieth Congress began on March 4, 1867. The radical wing of the Republican party had been muttering about impeachment even earlier, and a resolution had been passed by the House on the 7th of January preceding, authorizing the Judiciary Committee to inquire into the official conduct of the President and to report whether he had been guilty of acts designed or calculated to "overthrow, subvert, or corrupt the Government of the United States, or any department or office thereof." On the 28th of February, the committee reported that it had examined a large number of witnesses and collected many documents, but had not been able to reach a conclusion and that it would not feel justified in making a final report upon so important a matter in the expiring hours of this Congress, even if it had been able to make an affirmative one. On the 29th of March following, the committee was instructed to continue its investigation.
It accordingly continued its work and voted on the 1st of June, by 5 to 4, that there was no evidence that would warrant impeachment; but at the earnest solicitation of the minority it kept the case open during the recess which Congress took from July to November. In this interval one member of the committee changed his vote and this change made the committee stand 5 to 4 in favor of impeachment. The report of the committee was presented by Boutwell, of Massachusetts, November 25, accompanied by a resolution that Andrew Johnson, President of the United States, be impeached for high crimes and misdemeanors. James F. Wilson, of Iowa, chairman of the committee, submitted a minority report adverse to impeachment, and the House on the 7th of December sustained Wilson and rejected the majority report by a vote of 57 to 108. Among those voting against impeachment were Allison, Bingham, Blaine, Dawes, Poland, Spalding, and Washburne, of Illinois. On the other side were Thaddeus Stevens, B. F. Butler, and John A. Logan. On the 5th of August, the President sent to Stanton a note of three lines saying that his resignation as Secretary of War would be accepted. Stanton replied on the same day declining to resign before the next meeting of Congress. The President thereupon decided to remove him regardless of consequences, but he felt the necessity of finding somebody to take the office who would be acceptable to the country. His choice fell upon General Grant, who was perhaps the only person whose appointment under the circumstances would not have caused a disturbance. No plausible objection could be raised against him in any quarter, not even by Stanton himself. Grant reluctantly consented to accept the place. Accordingly one week after Stanton had refused to resign, the President suspended him and appointed Grant Secretary ad interim and so notified Stanton. The latter had undoubtedly made plans for retaining the office in defiance of the President and was chagrined to find that a man had been appointed whom he could not resist. Although a few months earlier he had advised the President that the Tenure-of-Office Law was unconstitutional and had assisted in writing the message vetoing it on that ground, he now denied the President's power to suspend him without the consent of the Senate, but said that he yielded to superior force. He then surrendered his office to Grant. Although the usual expressions of confidence and esteem were exchanged between himself and his successor, a residue of asperity remained in the breast of the retiring Secretary, who felt that the head of the army ought not to have enabled the President to get the better of him. But as a matter of fact Grant did not want the office. He accepted it only because he feared that trouble might follow from the appointment of somebody less familiar than himself with conditions prevailing in the South.
On the 13th of January, 1868, the Senate, having considered the reasons assigned by the President for the suspension of Stanton from office, non-concurred in the same and sent notice to this effect to the President and to Grant. The latter considered his functions as Secretary ad interim terminated from the moment of receipt of the notice and so notified the President, at the same time locking the door of his room and handing the key to the person in charge of the Adjutant-General's office in the same building.
Under the terms of the Tenure-of-Office Law, Stanton returned and resumed his former place.
On the 27th of January, a motion was made by Mr. Spalding in the House of Representatives that the Committee on Reconstruction be authorized to inquire what combinations had been made to obstruct the due execution of law and to report what action, if any, was necessary in consequence thereof. This resolution was adopted by a vote of 99 to 31. A few days later, on the motion of Thaddeus Stevens the evidence taken by the Committee on the Judiciary on the impeachment question was referred to the Committee on Reconstruction. Certain correspondence that had passed between General Grant and President Johnson relating to the retirement of the former from the War Office was also sent to the same committee.
The correspondence between General Grant and the President here referred to gives a fresh illustration of Andrew Johnson's want of tact in dealing with men and events. He first made an accusation that Grant had failed to keep a promise that he had previously given that "if you [Grant] should conclude that it would be your duty to surrender the department to Mr. Stanton, upon action in his favor by the Senate, you were to return the office to me, prior to a decision by the Senate, in order that if I desired to do so I might designate somebody to succeed you." This letter was dated January 31, 1868. Grant replied (February 3) denying that he had made any such promise, and saying that the President in making this accusation had sought to involve him in a resistance to law and thus to destroy his character before the country. Several other letters followed, including one from each member of the Cabinet, who was present when the matter was talked of between the two principals, all confirming the President's statements. The letters of Browning and Seward, however, tended to show that the President's desire was to make up a case for the Supreme Court, to decide whether he had a right under the Constitution to remove a Cabinet officer or not, and that he supposed that Grant had promised to coöperate with him to promote that end; but that whatever Grant might have promised, the sudden action of the Senate led him to believe that he could not delay his retirement without subjecting himself to the chance of fine and imprisonment under the Tenure-of-Office Law.103
The quarrel between Johnson and Grant did not, however, help the impeachers, who were voted down in the Committee on Reconstruction, February 13, by 6 to 3, Stevens being in the minority.
Stanton was now in a position of great embarrassment, being a member of the Cabinet by appointment of the Senate, but unable to attend Cabinet meetings. He was endowed with sufficient assurance for most purposes, but not enough to go to the White House and take a seat among gentlemen who would have looked upon him as an intruder and a spy. Johnson was advised by General Sherman and others to leave him severely alone.104
If this advice had been followed, Stanton would have been exposed to ridicule ere long and the Senate could not have helped him to ward it off. But Johnson came to his rescue by making a fresh attempt to oust him. Eight days after Thaddeus Stevens's impeachment resolution had been voted down, two to one, in his own committee, the President sent a note to Edwin M. Stanton saying that he had removed him from the office of Secretary of War and appointed Lorenzo Thomas, the Adjutant-General of the Army, as Secretary of War ad interim. The new appointee immediately presented himself at the War Office and showing his authority demanded possession, which Stanton refused to yield.
The tables were instantly turned. Stanton was no longer looked upon as holding an office with nothing to do except to draw his salary, but as a champion of the people defending them against a law-breaking President. Grant had warned Johnson months before that the public looked upon the Tenure-of-Office Law as constitutional until pronounced otherwise by the courts, and that although an astute lawyer might explain it differently the common people would "give it the effect intended by its framers," that is, to protect Stanton.105
This was sound advice. The revulsion in the public mind was electrical in suddenness and strength. The House of Representatives, which, on the 7th of December, by nearly two to one had rejected an impeachment resolution recommended by its Judiciary Committee, now (February 24) adopted the same resolution by 128 to 47. Every Republican member who was present, including James F. Wilson, voted in the affirmative. A committee of seven was appointed to prepare articles of impeachment and present them to the Senate. Nine such articles were reported to the House on the 2d of March and two additional ones on the following day, all of which were agreed to, and seven members of the House were appointed as managers to conduct the impeachment, namely: John A. Bingham, George S. Boutwell, James F. Wilson, Benjamin F. Butler, Thomas Williams, John A. Logan, and Thaddeus Stevens.
The trial began on the 5th of March, Chief Justice Chase presiding. The President was represented by Henry Stanbery, Benjamin R. Curtis, William S. Groesbeck, William M. Evarts, and Thomas A. R. Nelson. The House managers were overmatched in point of legal ability by the President's counsel, and still more by the facts in the case. The first eight articles of impeachment were based upon the President's attempt to remove Stanton and appoint Thomas as Secretary of War ad interim, but inasmuch as Senator Sherman had publicly declared that Stanton, being an appointee of Lincoln, was not protected by the Tenure-of-Office Law, and that he ought to be removed anyhow if he refused to resign at the President's request, it was deemed best by the impeachers to divide the offense into two parts. So the first article related only to the removal of Stanton and the second only to the appointment of Thomas. This, it was believed, would enable Sherman to vote not guilty on the first, but guilty on the second. He could vote that the President had a perfect right to remove his Secretary of War, but no right to fill the vacancy, and that any attempt on his part to do so would be a high misdemeanor, punishable by impeachment and removal from office. And so it turned out as regarded Sherman's vote, and also that of Senator Howe, of Wisconsin, who shared Sherman's view that Stanton was not protected by the law.
The ninth article charged the President with having a conversation with General Emory, who commanded the military department of Washington, and saying to him that that portion of the Army Appropriation Act, which provided that all orders relating to military affairs should be issued through the General of the Army, or the officer next in rank, and not otherwise, was unconstitutional, thus seeking to induce said Emory to violate the provisions of said act.
The tenth article recited that Andrew Johnson did at certain times and places make and "deliver with a loud voice certain intemperate, inflammatory, and scandalous harangues and did therein utter loud threats and bitter menaces as well against Congress as the laws of the United States duly enacted thereby, amid the cries, jeers, and laughter of the multitudes then assembled." Extracts from the speeches were embodied in this article, "by means whereof the said Andrew Johnson has brought the high office of President of the United States into contempt, ridicule, and disgrace, to the great scandal of all good citizens, whereby said Andrew Johnson, President of the United States, did commit, and was then and there guilty of, a high misdemeanor in office." This article was the production of General Butler.
The eleventh article embraced the charge of seeking to prevent Stanton from resuming his office as Secretary of War, but not that of removing him from it (this to accommodate Sherman and Howe), and a mélange of all the charges in the preceding articles, ending with a charge that the President had in various ways attempted to prevent the execution of the Reconstruction Acts of Congress. Thaddeus Stevens considered it the only one of the series that was bomb-proof, but the Chief Justice ruled that the Stanton matter was the only thing of substance in it, the residue being mere objurgation. The answer filed by the President's counsel set forth:
First, that the Tenure-of-Office Law, in so far as it sought to prevent the President from removing a member of his Cabinet, was unconstitutional; that such was the opinion of each member of his Cabinet, including Stanton, and that Stanton among others advised him to veto it;
Second, that even if the law were in harmony with the Constitution the Secretary of War was not included in its prohibitions, since the term for which he was appointed had expired before the President sought to remove him;
Third, that it seemed desirable, in view of the foregoing facts, to secure a judicial determination of all doubts respecting the rights and powers of the parties concerned, from the tribunal created for that purpose; and to this end he had taken the steps complained of, and that he had committed no intentional violation of law.
In answer to the eleventh article, the defendant said that the matters contained therein, except the charge of preventing the return of Stanton to the office of Secretary of War, did not allege the commission or omission of any act whatever whereby issue could be joined or answer made. As to the Stanton matter, his answer was already given in the answer to the first article.
There were two theories rife in the Senate and in the country, respecting this trial. One was that impeachment was a judicial proceeding where charges of treason, bribery, or other high crimes or misdemeanors were to be alleged and proved; the Senators sitting as judges, hearing testimony and argument, and voting guilty or not guilty. This opinion was generally accepted at first, both in and out of Congress, and was the correct one. The other was that impeachment was a political proceeding which the whole people were as competent to decide as the Senate. This was the view taken by Charles Sumner and avowed by him in his written opinion while sitting as one of the sworn judges to vote guilty or not guilty, and it came to be the opinion prevailing in the Republican party generally before the case was ended. According to this view it was a question for the people to decide in their character as an unsworn "multitudinous jury." No method of arriving at, or of recording, their verdict was suggested or deemed necessary. To a person holding this view the trial itself was logically a waste of time, since a decision could have been reached without a scrap of testimony, or a single speech, on either side.
The trial lasted from the 5th of March to the 16th of May, and the heat and fury of the contest both in and out of Congress became more intense from day to day. The impeachers lost ground in the estimation of the sober-minded and reflecting classes by their intemperate language, by their frantic efforts to bring outside pressure to bear upon Senators, and especially by their refusal to admit testimony offered to show that the President's intent was not to defy the law, but to get a judicial decision as to what the law was. The Chief Justice ruled that testimony to prove intent was admissible, and Senator Sherman asked to have it admitted, but it was excluded by a majority vote. Testimony to prove that Stanton advised the President that the Tenure-of-Office Law was unconstitutional and that he aided in writing the veto message was excluded by the same vote. Gideon Welles, under date April 18,106 says that Sumner, who had previously moved to admit all testimony offered, absented himself when it was proposed to call the Cabinet officers as witnesses. Monday, May 11, the case was closed and the Senate retired for deliberation. The session was secret, but the views of Senators, so far as expressed, leaked out. "Grimes boldly denounced all the articles," says Welles, "and the whole proceeding. Of course he received the indignant censure of all radicals; but Trumbull and Fessenden, who followed later, came in for even more violent denunciation and more wrathful abuse."
The vote was not taken until the 16th, and the intervening time was employed by the impeachers in bringing influence to bear upon Senators who had not definitely declared how they would vote. There were 54 votes in all; two thirds were required to convict. There were 12 Democrats, counting Dixon, Doolittle, and Norton, who had been elected as Republicans, but had been classed as Democrats since they had taken part in the Philadelphia Convention of August, 1866. If seven Republicans should join the twelve in voting not guilty, the President would be acquitted. Three had declared in the conference of Monday, the 11th, for acquittal, and they were men who could not be swerved by persuasion or threats after they had made up their minds. If four more should join with the three, impeachment would fail. Welles names as doubtful to the last Senators Anthony and Sprague, of Rhode Island, Van Winkle and Willey, of West Virginia, Frelinghuysen, of New Jersey, Morgan, of New York, Corbett, of Oregon, Cole, of California, Fowler, of Tennessee, Henderson, of Missouri, and Ross, of Kansas. He adds, May 14:
The doubtful men do not avow themselves, which, I think, is favorable to the President, and the impeachers display distrust and weakness. Still their efforts are unceasing and almost superhuman. But some of the more considerate journals, such as the New York Evening Post, Chicago Tribune, etc., rebuke the violent. The thinking and reflecting portion of the country, even Republicans, show symptoms of revolt against the conspiracy.107
The article in the New York Evening Post of May 14, two days before the first vote was taken, is a column long. It can only be summarized here.
So long as the court sat, it says, decency forbade the discussion of the issue elsewhere. It characterizes the articles of impeachment in groups and severally, and says Article XI "reads like a jest, in charging solemn official acts of 1868 as done in pursuance of an extreme and excited declaration, made to a crowd, in a political speech almost two years before...." Impertinent issues were constantly pressed upon the court from without. The New York Tribune demanded conviction and removal for breaking the Tenure-of-Office Act, because, it said, the President was guilty of drunkenness, adultery, treason, and murder. The investigation is of a sudden changed in its nature by the advocates of conviction and becomes a matter of politics, and no longer a judicial concern. Senator Wilson leads off by violating an absolutely fundamental principle of the life and law of every free people, i.e., the principle that an accused man shall have the benefit of a doubt, and be believed innocent until proved guilty. Wilson says: "I shall give the benefit of whatever doubts have arisen to perplex and embarrass me to my country rather than to the Chief Magistrate." … Here was a plain confession that to obtain conviction a "first principle of public law must be sacrificed; that one prominent judge, at least, would condemn the accused, however conscientiously, from other than judicial motives." It describes graphically the pressure brought to bear upon the court and its shameless character, and quotes from the New York Tribune's flagrant attack upon Grimes, Trumbull, and Fessenden, "three of the most honored statesmen and tried patriots in the land." "Thus," it says, "a prominent party organ tries to instigate the passions of the multitude to drive the court to the judgment it desires."
"In a meeting of the Republican Campaign Club on Tuesday evening," it continues, "Charles S. Spencer said that 'as a man of peace and one obedient to the laws, he would advise Senator Trumbull not to show himself on the streets in Chicago during the session of the National Republican Convention, for he feared that the representatives of an indignant people would hang him to the most convenient lamp-post.' And the meeting adopted and ordered to be sent to our Senators in Congress, a resolution, 'that any Senator of the United States elected by the votes of Union Republicans, who at this time blenches and betrays, is infamous, and should be dishonored and execrated while this free Government endures.'"
The following is from the Chicago Tribune, May 14, 1868:
IMPEACHMENT
… The man who demands that each Republican Senator shall blindly vote for conviction upon each article is a madman or a knave. Why a Senator, or any number of Senators, should be at liberty to vote as conscience dictates on any of the articles, provided there be a conviction on some one of them, and not be at liberty to vote conscientiously unless a conviction be secured, is only to be explained upon the theory that the President is expected to be convicted no matter whether Senators think he has been guilty or not. We have protested, and do now protest, against the degradation and prostitution of the Republican party to an exercise of power so revolting that the people will be justified in hurling it from place at the first opportunity. We protest against any warfare by the party or any portion of it against any Senator who may, upon the final vote, feel constrained to vote against conviction upon one, several, or even all of the articles. A conviction by a free and deliberate judgment of an honest court is the only conviction that should ever take place on impeachment; a conviction under any other circumstances will be a fatal error. To denounce such Senators as corrupt, to assail them with contumely and upbraid them with treachery for failing to understand the law in the same light as their assailants, would be unfortunate folly, to call it by the mildest term; and to attempt to drive these Senators out of the party for refusing to commit perjury, as they regard it, would cause a reaction that might prove fatal not only to the supremacy of the Republican party, but to its very existence. Those rash papers which have undertaken to ostracise Senators—men like Trumbull, Sherman, Fessenden, Grimes, Howe, Henderson, Frelinghuysen, Fowler, and others—are but aiding the Copperheads in the dismemberment of our party.
From the Nation, May 14, 1868.
… Can any party afford to treat its leading men as a part of the Republican press has been treating leading Republicans during the last few weeks? Senators of the highest character, who, in being simply honest and in having a mind of their own, render more service to the country than fifty thousand of the windy blatherskites who assail them, have been abused like pickpockets, simply because they chose to think. We have, during the last week, heard language applied to Mr. Fessenden and Mr. Trumbull, for instance, which was fit only for a compound of Benedict Arnold and John Morrissey, and all their colleagues have been warned beforehand, that if they pleaded their oaths as an excuse for differing from anybody who happened to edit a newspaper, they would be held up to execration as knaves and hypocrites. Now, the class of men who are most needed in our politics just now are high-minded, independent men, with their hands clean and souls of their own. Their errors of judgment are worth bearing with for the sake of their character. Yet this class is becoming smaller and smaller, falling more and more into disrepute. The class of roaring, corrupt, ignorant demagogues, who are always on "the right side" with regard to all party measures, grows apace; and, if we are not greatly mistaken, if the Republican party does not make short work with them before long, they will make short work of it....
When it became known that Grimes, Trumbull, and Fessenden would vote not guilty, the pressure from outside was redoubled upon others who had been reckoned doubtful, and especially upon Henderson, Fowler, and Ross.
Even the General Conference of the Methodist Episcopal Church, then in session at Chicago, was called upon to lend a hand, and a motion was made on the 13th of May for an hour of prayer in aid of impeachment. An aged delegate moved to lay that proposal on the table, saying:
My understanding is that impeachment is a judicial proceeding and that Senators are acting under an oath. Are we to pray to the Almighty that they may violate their oaths?
The motion to lay on the table prevailed. On the following day, however, Bishop Simpson offered a new preamble and resolution, omitting any expression of opinion that Senators ought to vote for conviction, but reciting that "painful rumors are in circulation that, partly by unworthy jealousies and partly by corrupt influences, pecuniary and otherwise, most actively employed, efforts were being made to influence Senators improperly, and to prevent them from performing their high duty"; therefore, an hour should be set apart in the following day for prayer to beseech God "to save our Senators from error." This cunningly drawn resolution was adopted without opposition. It was supposed to have been aimed at Senator Willey, of West Virginia, rather than at the Throne of Grace.